Bonet v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

STROTNEY T. BONET PLAINTIFF

vs. Civil No. 1:18-cv-01074

COMMISSIONER, SOCIAL DEFENDANT

SECURITY ADMINISTRATON

MEMORANDUM OPINION

Strotney T. Bonet (“Plaintiff”) brings this action pursuant to § 205(g) of Title II of the

Social Security Act (“The Act”), 42 U.S.C. § 405(g) (2010), seeking judicial review of a final

decision of the Commissioner of the Social Security Administration (“SSA”) denying his

application for Supplemental Security Income (“SSI”) under Title XVI of the Act.

The Parties have consented to the jurisdiction of a magistrate judge to conduct any and all

proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and

conducting all post-judgment proceedings. ECF No. 10.1 Pursuant to this authority, the Court

issues this memorandum opinion and orders the entry of a final judgment in this matter.

1. Background:

Plaintiff protectively filed his SSI application on October 26, 2015. (Tr. 12). In this

application, Plaintiff alleges being disabled due to back and neck problems, arthritis, and numbness

in his legs. (Tr. 239). Plaintiff alleged an onset date of October 1, 2015. (Tr. 12). This application

1 The docket numbers for this case are referenced by the designation “ECF No. ___” The transcript pages

for this case are referenced by the designation “Tr” and refer to the document filed at ECF No. 13. These

references are to the page number of the transcript itself not the ECF page number.

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was denied initially and again upon reconsideration. (Tr. 97-118).

After Plaintiff’s application was denied, he requested an administrative hearing on his

application, and this hearing request was granted. (Tr. 9-25). On March 12, 2018, the SSA held

an administrative hearing in El Dorado, Arkansas. Id. At this hearing, Plaintiff was present and

was represented by David Graham. Id. Plaintiff and Vocational Expert (“VE”) Beverly Majors

testified at this hearing. Id. During this hearing, Plaintiff testified he was forty-four (44) years

old, which is classified as a “younger person” under 20 C.F.R. § 416.963(c). (Tr. 18, Finding 6).

Plaintiff also testified he had a high school education and could communicate in English. (Tr. 18,

Finding 7).

On April 25, 2018, after the administrative hearing, the ALJ entered a fully unfavorable

decision denying Plaintiff’s SSI application. (Tr. 12-20). The ALJ determined Plaintiff had not

engaged in Substantial Gainful Activity (“SGA”) since October 26, 2015, his application date.

(Tr. 14, Finding 1). The ALJ determined Plaintiff had the following severe impairments: lumbar

degenerative changes with L5-S1 protrusions, cervical degenerative changes with herniation and

foraminal stenosis and obesity. (Tr. 15, Finding 2). Despite being severe, the ALJ also determined

Plaintiff did not have an impairment or combination of impairments that met or medically equaled

one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15, Finding 3).

In this decision, the ALJ evaluated Plaintiff’s subjective complaints and determined his

Residual Functional Capacity (“RFC”). (Tr. 15-18, Finding 4). Specifically, the ALJ found

Plaintiff retained the following RFC:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in 20

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CFR 416.967(b) except may occasionally climb ramps and stairs; never climb

ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch or crawl;

and, occasional bilateral overhead reaching.

Id.

The ALJ evaluated his Past Relevant Work (“PRW”) and determined Plaintiff was unable

to perform his PRW. (Tr. 18, Finding 5). Because he was unable to perform his PRW, the ALJ

then determined whether Plaintiff retained the capacity to perform other work existing in

significant numbers in the national economy. (Tr. 19, Finding 9). The VE also testified at the

administrative hearing regarding this issue. Id. Based upon that testimony, the ALJ determined

Plaintiff retained the capacity to perform the following occupations: (1) price marker (light,

unskilled) with 283,900 such job in the United States; (2) janitor (light, unskilled) with 136,000

such jobs in the United States; and (3) table attendant (light, unskilled) with 60,000 such jobs in

the United States. Id. Because the ALJ found Plaintiff retained the capacity to perform this other

work, the ALJ determined Plaintiff had not been under a disability (as defined by the Act) at any

time since October 26, 2015 (his application date). (Tr. 19, Finding 10).

Plaintiff requested the Appeals Council’s review of the ALJ unfavorable disability

determination. On October 15, 2018, the Appeals Council declined to review the ALJ’s disability

determination. (Tr. 1-8). On December 7, 2018, Plaintiff filed the present appeal. ECF No. 1.

The Parties consented to the jurisdiction of this Court on December 21, 2018. ECF No. 10. This

case is now ready for decision.

2. Applicable Law:

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In reviewing this case, this Court is required to determine whether the Commissioner’s

findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g)

(2010); Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir. 2002). Substantial evidence is less than

a preponderance of the evidence, but it is enough that a reasonable mind would find it adequate to

support the Commissioner’s decision. See Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

As long as there is substantial evidence in the record that supports the Commissioner’s decision,

the Court may not reverse it simply because substantial evidence exists in the record that would

have supported a contrary outcome or because the Court would have decided the case differently.

See Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). If, after reviewing the record, it is

possible to draw two inconsistent positions from the evidence and one of those positions represents

the findings of the ALJ, the decision of the ALJ must be affirmed. See Young v. Apfel, 221 F.3d

1065, 1068 (8th Cir. 2000).

It is well-established that a claimant for Social Security disability benefits has the burden

of proving his or her disability by establishing a physical or mental disability that lasted at least

one year and that prevents him or her from engaging in any substantial gainful activity. See Cox

v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The

Act defines a “physical or mental impairment” as “an impairment that results from anatomical,

physiological, or psychological abnormalities which are demonstrable by medically acceptable

clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382(3)(c). A plaintiff

must show that his or her disability, not simply his or her impairment, has lasted for at least twelve

consecutive months. See 42 U.S.C. § 423(d)(1)(A).

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To determine whether the adult claimant suffers from a disability, the Commissioner uses

the familiar five-step sequential evaluation. He determines: (1) whether the claimant is presently

engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment that

significantly limits the claimant’s physical or mental ability to perform basic work activities; (3)

whether the claimant has an impairment that meets or equals a presumptively disabling impairment

listed in the regulations (if so, the claimant is disabled without regard to age, education, and work

experience); (4) whether the claimant has the Residual Functional Capacity (RFC) to perform his

or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts

to the Commissioner to prove that there are other jobs in the national economy that the claimant

can perform. See Cox, 160 F.3d at 1206; 20 C.F.R. §§ 404.1520(a)-(f). The fact finder only

considers the plaintiff’s age, education, and work experience in light of his or her RFC if the final

stage of this analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920 (2003).

3. Discussion:

In his appeal brief, Plaintiff raises two arguments for reversal: (1) the ALJ improperly

assessed his impairments under the Listings; and (2) the ALJ erred in his RFC findings. ECF No.

17 at 12-16. Upon review, the Court finds Plaintiff’s first argument is merited, and the ALJ erred

by failing to consider the evidence relevant to Plaintiff’s subjective complaints. Thus, the Court

will only consider this issue.

As an initial matter, the Court notes that in assessing the credibility of a claimant, the ALJ

is required to examine and to apply the five factors from Polaski v. Heckler, 739 F.2d 1320 (8th

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Cir. 1984) or from 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929.2 See Shultz v. Astrue, 479 F.3d

979, 983 (2007). The factors to consider are as follows: (1) the claimant’s daily activities; (2) the

duration, frequency, and intensity of the pain; (3) the precipitating and aggravating factors; (4) the

dosage, effectiveness, and side effects of medication; and (5) the functional restrictions. See

Polaski, 739 at 1322.

The factors must be analyzed and considered in light of the claimant’s subjective

complaints of pain. See id. The ALJ is not required to methodically discuss each factor as long

as the ALJ acknowledges and examines these factors prior to discounting the claimant’s subjective

complaints. See Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir. 2000). As long as the ALJ properly

applies these five factors and gives several valid reasons for finding that the Plaintiff’s subjective

complaints are not entirely credible, the ALJ’s credibility determination is entitled to deference.

See id.; Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). The ALJ, however, cannot discount

Plaintiff’s subjective complaints “solely because the objective medical evidence does not fully

support them [the subjective complaints].” Polaski, 739 F.2d at 1322.

When discounting a claimant’s complaint of pain, the ALJ must make a specific credibility

determination, articulating the reasons for discrediting the testimony, addressing any

inconsistencies, and discussing the Polaski factors. See Baker v. Apfel, 159 F.3d 1140, 1144 (8th

2 Social Security Regulations 20 C.F.R. § 404.1529 and 20 C.F.R. § 416.929 require the analysis of two

additional factors: (1) “treatment, other than medication, you receive or have received for relief of your

pain or other symptoms” and (2) “any measures you use or have used to relieve your pain or symptoms

(e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.).”

However, under Polaski and its progeny, the Eighth Circuit has not yet required the analysis of these

additional factors. See Shultz v. Astrue, 479 F.3d 979, 983 (2007). Thus, this Court will not require the

analysis of these additional factors in this case.

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Cir. 1998). The inability to work without some pain or discomfort is not a sufficient reason to find

a Plaintiff disabled within the strict definition of the Act. The issue is not the existence of pain, but

whether the pain a Plaintiff experiences precludes the performance of substantial gainful activity.

See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991).

In the present action, the Court finds the ALJ did not provide sufficient reasons for

discounting Plaintiff’s subject complaints. In his opinion, the ALJ merely provided the following

routine statement regarding those allegations:

After careful consideration of the evidence, the undersigned finds that the

claimant’s medically determinable impairments could reasonably be expected to

cause the alleged symptoms; however, the claimant’s statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely

consistent with the medical evidence and other evidence in the record for the

reasons explained in this decision.

(Tr. 16).

In his opinion, the ALJ based his credibility determination upon the fact Plaintiff’s medical

records did not support those allegations. The Court finds this determination was in error. See

Polaski, 739 F.2d at 1322 (recognizing “[t]he ALJ, however, cannot discount Plaintiff’s subjective

complaints ‘solely because the objective medical evidence does not fully support them [the

subjective complaints]’”). Thus, this case must be remanded for further consideration of this issue.

4. Conclusion:

Based on the foregoing, the undersigned finds the ALJ’s RFC determination and credibility

analysis are not supported by substantial evidence in the record. As such, this case is reversed and

remanded for further findings consistent with this opinion. A judgment incorporating these

findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.

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ENTERED this 29th day of October 2019.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE

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